Arriaga v. State, 04-89-00053-CR

• Decision Date: 31 January 1991
• Docket Number: No. 04-89-00053-CR,04-89-00053-CR
• Citation: 804 S.W.2d 271
• Parties: David Morua ARRIAGA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 271

804 S.W.2d 271

David Morua ARRIAGA, Appellant, v. The STATE of Texas, Appellee.

No. 04-89-00053-CR.

Court of Appeals of Texas San Antonio.

Jan. 31, 1991.

Rehearing Denied Feb. 26, 1991.

Nancy B. Barohn, San Antonio, for appellant.

Steven C. Hilbig, Crim. Dist. Atty., Fred G. Rodriguez, Former Crim. Dist. Atty., Jane Davis, Dennis Peery, Jim Kopp, Laura M. Hubert, San Antonio, for appellee.

Before REEVES, C.J., and PEEPLES and CARR, JJ.

OPINION

CARR, Justice.

This is an appeal from a jury conviction of unlawful delivery of heroin less than twenty-eight grams. The trial court assessed a punishment of ten years confinement, probated, and a $1,000.00 fine. Appellant, David Morua Arriaga, brings this appeal raising four points of error.

In his first point of error appellant asserts the trial court committed reversible error by denying appellant's timely request to make an opening statement to the jury immediately following the State's opening. At the conclusion of the State's opening argument, appellant's counsel asked to make an opening statement. The trial court denied the request. Appellant argues that this was reversible error. The State counters that appellant failed to preserve error by not specifying the grounds for the request, by not objecting to the trial court's denial of the request, and by later waiving opening argument when given the opportunity to do so at the conclusion of the State's case. The State also argues that error, if any, was harmless.

At the conclusion of the State's opening argument, the following occurred:

THE COURT: Okay. Call your first witness.

MS. BAROHN [Defense counsel]: Your Honor, may I make my opening statement?

THE COURT: Not at this time, Counsel.

MS. BAROHN: Not at this time?

THE COURT: No, ma'am.

After the State rested and appellant's motion for instructed verdict was denied, the following occurred:

THE COURT: Okay. So, do you need until 1:30? We can start at 1:30 if I tell the jurors to come back.

MS. BAROHN: That would be fine. I'd like to make an opening statement at that time, if I may.

THE COURT: I'll give you that opportunity at that time.

MS. BAROHN: Thank you.

When court resumed appellant made no opening statement, but began presenting witnesses.

PRESERVATION OF ERROR

Initially, we address preservation of error. Article 36.01 of the Code of Criminal Procedure provides in part:

(a) A jury being impaneled in any criminal action, except as provided by Subsection (b) of this article, the cause shall proceed in the following order:

* * * * * *

3. The State's attorney shall state to the jury the nature of the accusation and the facts which are expected to be proved by the State in support thereof.

4. The testimony on the part of the State shall be offered.

5. The nature of the defenses relied upon and the facts expected to be proved in their support shall be stated by defendant's counsel.

* * * * * *

(b) The defendant's counsel may make the opening statement for the defendant immediately after the attorney representing the State makes the opening statement for the State. After the defendant's attorney concludes the defendant's opening statement, the State's testimony shall be offered. At the conclusion of the presentation of the State's testimony, the defendant's testimony shall be offered, and the order of proceedings shall continue in the manner described by Subsection (a) of this article. (Emphasis added).

Rule 52(a) of the Texas Rules of Appellate Procedure states:

In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion. If the trial judge refuses to rule, an objection to the court's refusal to rule is sufficient to preserve the complaint. It is not necessary to formally except to rulings or orders of the trial court.

In Long v. State, 800 S.W.2d 545 (Tex.Crim.App.1990), the court addressed a holding by the Court of Appeals that an objection to "hearsay" was a general objection and did not preserve for review a point of error about the State's failure to comply with TEX.CODE CRIM.PROC.ANN. art. 38.072. The Court of Criminal Appeals concluded that the defendant did not waive his right to appellate review merely by failing to specifically cite to the statute. The court stated, "In the context of this record where the objection was raised immediately before the child's mother began to testify as to what her daughter told her, we cannot imagine that the trial court somehow failed to comprehend the nature of appellant's hearsay complaint." Id. at 584.

In the instant case, counsel made a request to make an opening statement immediately after the prosecutor's opening statement. The trial court denied the request. As the Court of Criminal Appeals stated in Long, we cannot imagine that the trial court did not comprehend the nature of the request. There was no need to specifically refer to article 36.01(b).

Additionally, appellant was not required to object. Rule 52(a) only requires a party to present a timely request and obtain a ruling on the request. No formal exception is necessary. The State contends the trial court did not deny appellant's request to make an opening statement, but merely delayed it. Appellant made a request to present the opening statement at a specific point in the trial. That request was denied. Appellant obtained an adverse ruling on the request.

The State argues that appellant waived the error by not making an opening statement at the beginning of the defense's case-in-chief. A waiver is "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), cited in Robles v. State, 577 S.W.2d 699, 703 (Tex.Crim.App.1979). The right, or statutory privilege, at issue in the case at hand is the presenting of an opening statement after the State opens but before the State introduces evidence. The focus of article 36.01(b) is not whether a defendant may make an opening statement but when the statement may be made. Before the 1987 amendments to article 36.01, the article provided that the defense would make its opening statement after the State's case concluded. Farrar v. State, 784 S.W.2d 54, 55 (Tex.App.--Dallas 1989, no pet.). ¹The amendment allows the defense counsel to make [her] opening statement after the prosecutor's opening statement if [she] chooses. It does not eliminate the defense attorney's right to make an opening statement after the State rested, but when read in conjunction with subsection (a) of article 36.01, gives the defense counsel a choice of when to make [her] opening statement.

Id. at 56. The legislature has decided, in amending the statute, that the defendant now has the tactical choice of determining when to make an opening statement. As appellant's brief points out, there are situations in which an attorney might tactically decide to make an opening statement prior to the State's evidence, such as the instant case where the defense was alibi and relied upon challenges to the State's eyewitness through cross-examination about prior inconsistent statements. An attorney may decide that such an opening statement is appropriate and effective if delivered immediately after the State's opening statement, but that it would be inappropriate and ineffective if given later in the trial.

The question is whether there was an intentional relinquishment or abandonment of the right to make an opening statement immediately after the State's opening statement. We conclude there was not. Once the State presented its evidence the opportunity to address the jury after the prosecutor, and before the introduction of evidence, was lost--not abandoned. ² For the same reasons, there was also no forfeiture of the right to make an opening statement before the State presented evidence.

The point of error is properly before this court.

HARMLESS ERROR ANALYSIS

The State takes the position that if error was preserved it was harmless under TEX.R.APP.P. 81(b)(2). It is not clear that error in denying a defendant the right to make an opening statement before the State introduces evidence is subject to a harmless error analysis under rule 81(b)(2). Initially, we must decide whether article 36.01(b) is a mandatory or permissive statute.

The statute states that a defendant's counsel "may" give the opening statement. The word "may" is ordinarily considered a word of permission. However, we must read the word in the context of the statute. In article 36.01(b), "may" is directed to defense counsel. We agree with the Dallas Court of Appeals' reading of the article in Farrar v. State that defense counsel is given a choice of when to make the opening statement. If the choice is that of defense counsel's, then the trial court has no discretion in the matter. Once counsel chooses, then the point at which the opening statement is to be made is mandatory as far as the trial court is concerned. See Sodipo v. State (Tex.Crim.App., No. 1390-88, delivered September 12, 1990) (slip op. at 4).

The Court of Criminal Appeals has not decided whether all mandatory statutes are immune to a harmless error analysis. Id. slip op. at 5. In Sodipo, the court recognized that some statutory violations "cannot be subjected to a harm analysis in any meaningful manner, because the record will not reveal any concrete data from which an appellate court can meaningfully gauge or quantify the effect of the error." Id. slip op. at 5. The court discussed the position taken by the United States Supreme Court as follows:

By comparison, the United States Supreme Court has made the distinction between its federal harmless error rule and the use of an...